Towards a More Particularist View of Rights\u2019 Stringency

Benedict Rumbold

doi:10.1007/s11158-018-9396-3

Abstract

For all their various disagreements, one point upon which rights theorists often agree is that it is simply part of the nature of rights that they tend to override, outweigh or exclude competing considerations in moral reasoning, that they have ‘peremptory force’ (Raz in The Morality of Freedom, Oxford University Press, Oxford, 1986, p. 192), making ‘powerful demands’ that can only be overridden in ‘exceptional circumstances’ (Miller, in Cruft, Liao, Renzo (eds), Philosophical Foundations of Human Rights, Oxford University Press, Oxford, 2016, p. 240). In this article I challenge this thought. My aim here is not to prove that the traditional view of rights’ stringency is necessarily false, nor even that we have no good reason to believe it is true. Rather, my aim is only to show that we have good reason to think that the foundation of the traditional position is less stable than we might have otherwise supposed and that an alternative conception of rights—one which takes the stringency of any given right as particular to the kind of right it is—is both viable and attractive. In short, to begin to move us towards a more ‘particularist’ conception of rights’ standing in moral reasoning and judgement.

Highlights

How stringent are rights? That is, at what point do they yield to competing considerations in moral reasoning and judgement (Edmundson 2004, p. 129)? Whatever writers’ various responses to this question, one point upon which almostB
This is for a simple reason: namely, it is just part of the nature of rights, qua rights, that they override, outweigh or exclude competing considerations in moral reasoning, that they have ‘peremptory force’ (Raz 1986, p. 192), making ‘powerful demands’ that can only be overridden in ‘exceptional circumstances’ (Miller 2016, p. 240)
There is still, a point to stipulating a right falling short of the kind of trumping threshold Dworkin posits, for recognition of such rights still helps us make sense of the moral features of the situation: i.e. that there is at least one consideration that counts against the pursuit collective goal x, and that consideration is the damage such a pursuit does to the right-bearer with respect to their right

Summary

Introduction

How stringent are rights? That is, at what point do they yield to competing considerations in moral reasoning and judgement (Edmundson 2004, p. 129)? Whatever writers’ various responses to this question, one point upon which almost. There is still, a point to stipulating a right falling short of the kind of trumping threshold Dworkin posits, for recognition of such rights still helps us make sense of the moral features of the situation: i.e. that there is at least one consideration that counts against the pursuit collective goal x, and that consideration is the damage such a pursuit does to the right-bearer with respect to their right It seems difficult, to defend the concrete claim on the basis that there is no point to recognising those rights that fail to offer decisive reasons for action. Insofar as we do find such rights, one cannot use the derivative defence to justify the generalist’s concrete claim

The Abstract

Conclusion